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decided: March 16, 1973.


Appeals from order and judgment of Court of Common Pleas of Lackawanna County, Jan. T., 1965, No. 574, in case of Jo Ann C. Burne v. The Franklin Life Insurance Company.


Joseph E. Gallagher, with him O'Malley, Morgan, Bour & Gallagher, for appellant.

J. Charles Hanahue, with him Warren, Hill, Henkelman & McMenamin, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this opinion and also files a concurring opinion. Concurring Opinion by Mr. Justice Manderino. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissenting opinion.

Author: Roberts

[ 451 Pa. Page 220]

This is an appeal from the order of the Court of Common Pleas of Lackawanna County denying plaintiff-appellant's motion for summary judgment and from the judgment entered below in favor of defendant-insurance company, upon said defendant's motion for summary judgment. The action below, in assumpsit, was for the recovery of the accidental (double indemnity) death benefits of a life insurance policy, of which appellant is the beneficiary. For the reasons set out below, we reverse.

In 1949, defendant-appellee issued to the insured (appellant's husband) a life insurance policy in the face amount of $15,000. The policy also contained a double indemnity proviso for an additional $15,000 if the death of the insured resulted from purely accidental means. This double indemnity provision, and the exceptions contained therein, are the subject of this appeal.

On January 30, 1959, while the policy was in effect, the insured Bartholomew Burne, was struck by an automobile while crossing a street in North Miami, Florida. Immediate and extensive brain surgery was required. From the moment of the accident until his death, Mr. Burne's existence was that of a complete and hopeless invalid, unable to speak, subject to seizures and requiring constant nursing and medical care. Vast sums of money were expended by appellant, and the most sophisticated medical techniques utilized, merely to keep her husband medically alive, albeit in a vegetative state, for 4 1/2 years.*fn1 It is conceded by the appellee

[ 451 Pa. Page 221]

    insurance company that the injuries sustained were the direct and sole cause of the insured's death. Appellee paid the face amount of the policy, but refused to pay the accidental death benefits.

The life insurance policy under consideration provides for double indemnity liability for death resulting from accident. However, the policy states that such accidental death benefits will be payable only if ". . . such death occurred . . . within ninety days from the date of the accident." One further exception in the double indemnity rider provides: "This Accidental Death Benefit shall not be payable * * * (10) if the death of the insured shall occur while any premium is being waived under any disability benefit attached to or incorporated in said policy. * * *" (It should be noted, however, that under the policy, no premiums are waived until the insured furnishes proof to the company that the insured has been totally incapacitated for at least six months.) On the basis of these exceptions, the trial court, en banc, granted defendant-appellee's motion for summary judgment. This appeal challenges the validity of these exceptions as applied to the facts of the instant case.*fn2

There are strong public policy reasons which militate against the enforceability of the ninety day limitation. The provision has its origins at a much earlier stage of medicine. Accordingly, the leading case construing the provision predates three decades of progress

[ 451 Pa. Page 222]

    in the field of curative medicine. Advancements made during that period have enabled the medical profession to become startlingly adept at delaying death for indeterminate periods. Physicians and surgeons now stand at the very citadel of death, possessing the awesome responsibility of sometimes deciding whether and what measure should be used to prolong, even though momentarily, an individual's life. The legal and ethical issues attending such deliberations are gravely complex.*fn3

The result reached by the trial court presents a gruesome paradox indeed -- it would permit double indemnity recovery for the death of an accident victim who dies instantly or within ninety days of an accident, but would deny such recovery for the death of an accident victim who endures the agony of prolonged illness, suffers longer, and necessitates greater expense by his family in hopes of sustaining life even momentarily beyond the ninety day period. To predicate liability under a life insurance policy upon death occurring only on or prior to a specific date, while denying policy recovery if death occurs after that fixed date, offends the basic concepts and fundamental objectives of life insurance and is contrary to public policy. Hence, the ninety day limitation is unenforceable.

All must recognize the mental anguish that quite naturally accompanies these tragic occurrences. Surely that anguish ought not to be aggravated in cases of this kind with concerns of whether the moment of death permits or defeats the double indemnity claim. So too,

[ 451 Pa. Page 223]

    the decisions as to what medical treatment should be accorded an accident victim should be unhampered by considerations which might have a tendency to encourage something less than the maximum medical care on penalty of financial loss if such care succeeds in extending life beyond the 90th day. All such factors should, wherever possible, be removed from the antiseptic halls of the hospital. Rejection of the arbitrary ninety day provision does exactly that.

Aside from considerations of public policy, the ninety day provision possesses no persuasive decisional support. In granting appellee's motion for summary judgment, the trial court obviously relied upon a single thirty year old case, Sidebothom v. Metropolitan Life Insurance Co., 339 Pa. 124, 14 A.2d 131 (1940). That case, as well as virtually every other case which construed a ninety day limitation provision,*fn4 is based on considerations which have no pragmatic applicability to the factual situation here. The earlier judicial interpretation of the ninety day provision was that its underlying purpose was to govern situations where there existed some possible uncertainty over whether injuries sustained in an accident would actually result in death. The ninety day provision attempted to delineate a line governing cases where the injuries may or may not

[ 451 Pa. Page 224]

    cause death. Ninety days was the arbitrary period advanced by the carrier within which to ascertain whether death will in fact result from the accident.

The factual situation in Sidebothom is illustrative of the principles underlying a ninety day provision. There the insured suffered injuries from two different exposures to carbon monoxide. While in the hospital he suffered further injuries from a fall from a hospital bed. In two crucial ways that case is distinguishable from the instant one. First, the injury involved in Sidebothom was not the type that with any degree of certainty could be regarded as fatal. In addition Sidebothom presented distinct causation problems, the deceased having suffered injuries both within and without the ninety day period. The instant case suffers from neither of these infirmities. It was clear from the moment of the accident that the husband would die as a result thereof, the only question being one of time. Nor was there any causation problem, it being conceded by the defendant that the sole cause of death was the injuries suffered by the husband when struck by the car.

It is well settled that if a provision in an insurance policy cannot reasonably be applied to a certain factual situation it should be disregarded. This sound rule of law was succinctly articulated as early as Grandin v. Rochester German Insurance Company, 107 Pa. 26 (1884), where the Court refused to mechanically apply an insurance provision, saying: "It will thus be seen that where the reason of a condition does not apply this court has refused to apply it. Other instances of the same might be cited were it necessary. We are not to suppose that conditions involving forfeitures are introduced into policies by insurance companies, which are purely arbitrary and without reason, merely as a trap to the assured or as a means of escape for the company

[ 451 Pa. Page 225]

    in case of loss. When therefore a general condition has no application to a particular policy; where the reason which alone gives it force is out of the case, the condition itself drops out with it." Id. at 37. See also Tennant v. Hartford Steam Boiler Inspection and Insurance Company, 351 Pa. 102, 40 A.2d 385 (1944); Norlund v. Reliance Life Ins. Co., 282 Pa. 389, 128 Atl. 93 (1925). This case is clearly one where "the reason of a condition does not apply." The provision should not be applied to cases where, as this record establishes, no dispute exists as to the cause of ...

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